State v. Scott Michael Harwood, 2003 WI App 215
For Harwood: Pat J. Schott, Margaret G. Zickuhr
Issue: Whether warrantless entry was supported by both probable cause and exigent circumstances, as required by State v. Hughes, 2000 WI 24, ¶17, 233 Wis. 2d 280, 607 N.W.2d 621, based upon a tenant’s reporting a break-in at another apartment within the complex.
Holding1 (probable cause):
¶15. Unlike the officers in Paterson who knew only that the lights in the residence had been turned on and off and nobody was answering the phone, the officers in this case had decidedly more suspicious information. Here, a resident of the apartment complex had reported a burglary in progress based upon his observation of one man boosting another onto the patio of an upper level apartment. The reporting resident did not identify either man as a resident of the apartment complex. When the police encountered Harwood and Van Hoorbeck in the building, Harwood appeared to be nervous and possibly concealing something in Van Hoorbeck’s apartment. Although claiming to live in the apartment in question, Harwood could not recall the address of the apartment, could not recall his social security number, could not produce the keys to the apartment that he had just entered to retrieve, and his name did not match the name observed by the officers on the buzzer to the apartment. While a female occupant of Van Hoorbeck’s apartment later produced keys and indicated they belonged to Harwood, the officers did not know the female occupant or her relationship to Harwood. Moreover, the female’s production of Harwood’s keys conflicted with Harwood’s statement to the officers that his keys were in his apartment. We conclude that the totality of these observations established a “fair probability” that evidence of a crime would be found in Harwood’s apartment. See Hughes, 233 Wis. 2d 280, ¶17 (citing Gates, 462 U.S. at 238).
¶18. Harwood also argues that the officers should have attempted to contact his apartment manager or check the license plate registration on his vehicle prior to entering the apartment. In support, Harwood again relies on Paterson, a community caretaker case. One of the factors to be considered in assessing community caretaker activity is the availability and effectiveness of alternatives to intrusion. Paterson, 220 Wis. 2d at 533-34. However, Paterson did not involve a claim of probable cause, which requires a wholly different inquiry-whether there is a “fair probability” that contraband or evidence of a crime will be found in a particular place. Hughes, 233 Wis. 2d 280, ¶17 (citing Gates, 462 U.S. at 238). Here both Glider and Herbst testified that they were concerned with the possibility that a crime could be ongoing in Apartment 206. As discussed above, the facts within the officers’ knowledge at the time of the entry supported that determination.
Holding2 (exigent circumstances):
¶24. The facts confronting the police and the police reaction are similar to those of the officers in Richter. Glider received a dispatch to a possible burglary in progress. He arrived at Coachlight Apartments and organized police efforts to secure the building. He immediately entered the building in search of Apartment 206 and the suspect. Although Glider encountered Harwood while attempting to collect information about the suspect, as the State points out, this encounter did nothing to assuage Glider’s concerns but rather exacerbated them.
¶25. Harwood argues that the officers could have done more to ascertain his identity prior to entering the apartment. However, this argument overlooks that, at the time, the officers believed that a burglary was possibly in progress and therefore time was of the essence. By definition, exigent circumstances require a prompt response by officers. “[W]e do not apply hindsight to the exigency analysis; we consider only the circumstances known to the officer at the time he [or she] made the entry and evaluate the reasonableness of the officer’s action in light of those circumstances.” Id., ¶43. That Glider later discovered that Harwood did reside in Apartment 206 does not negate the exigency prior to ascertaining that information.
Other courts stress that the general rule is that the police may enter where there is reason to believe a burglary is in progress, e.g., State v. Simmons, n. 7, and cases cited, Mo App. No. 2591, 3/31/05; in other words, “there is a need that will not brook the delay incident to obtaining a warrant,” id. And, courts that explicitly recognize the imperatives of timely action nonetheless tend to subject the facts to relatively exacting scrutiny — e.g., Simmons; State v. Ryon, 2005-NMCA-005, ¶¶40-41 (“Many people purposely leave on a light even when they are away. An open door ought not be viewed as a general invitation to enter.”); U.S. v. McClain, 6th Cir No. 04-5887, 12/2/05 (no probable cause where neighbor reported owners had moved out several weeks earlier, and now was light on in house plus police found front door very slightly ajar but no signs of forced entry; court noting: “our precedent has required more—namely, the existence outside the searched premises of some physical signs of a burglary or some direct evidence of a home invasion”); State v. Christenson, 181 Or App 345, 350-52, 45 P3d 511 (2002) (absent indications of forced entry, a medical emergency, or “other signs of trouble,” that dogs were running loose, front door was open and house seemed silent did not constitute a “true emergency”). But see U.S. v. Brown, 6th Cir. No. 05-5437, 5/31/06 (responding to activated burglar alarm officer found basement door ajar and was justified in entering; McClain distinguished, under general rule that warrantless entry permissible when police reasonably believe burglary in progress).
Of course, some courts instead may be inclined to give benefit of doubt to the police in ambiguous circumstances, though by definition there must be at least some apparent need for immediate assistance, see, e.g., State v. Torres, Or App No A120024, 8/17/05 (“The circumstances known to the officers suggested that a burglary had just taken place at the house, that an innocent occupant of the house might have been present at the time of the incident, and that such a person might now be in the garage behind a locked door and in need of immediate assistance.”), withdrawing earlier opinion in same case, 198 Or App 218, 108 P3d 69 (2005) (which had held that the entry into the locked garage wasn’t justified because a police sweep of house following break-in revealed no further danger) — on reconsideration, the court determined that it had given insufficient deference to a trial court finding that the police heard apparently human noises coming from garage, suggesting that someone was inside.
Compare, State v. Pierce, OR App No. A131475, 3/4/09 (“the crime of disorderly conduct–based merely on people loudly ‘having an argument’ in the middle of the night–did not” amount to exigency so as to justify warrantless entry).